BILL ANALYSIS SB 928 SENATE COMMITTEE ON ENVIRONMENTAL QUALITY Senator S. Joseph Simitian, Chairman 2009-2010 Regular Session BILL NO: SB 928 AUTHOR: Simitian AMENDED: March 25, 2010 FISCAL: No HEARING DATE:April 5, 2010 URGENCY: No CONSULTANT: Rachel Machi Wagoner SUBJECT : CONSUMER PRODUCTS: CONTENT INFORMATION SUMMARY : Existing federal law : 1) Pursuant to the Consumer Product Safety Act, provides protection of the public against unreasonable risks of injury associated with consumer products, largely by developing uniform safety standards for those products. 2) Pursuant to the Toxic Substances Control Act, states that adequate data should be developed with respect to the effect of chemical substances and mixtures on health and the environment and that the development of such data should be the responsibility of those who manufacture and those who process such chemical substances and mixtures. Existing California law : 1) Requires the manufacturer of a cosmetic product to disclose to the Department of Public Health a list of any ingredient in their product that is a chemical which has been identified to cause cancer or reproductive damage, pursuant to the California Safe Cosmetics Act of 2005. 2) Requires the Department of Toxic Substances Control (DTSC) to adopt regulations to: 1) establish a process to identify and prioritize chemicals or chemical ingredients in products that may be considered a "chemical of concern;" 2) establish a process for evaluating chemicals of concern in SB 928 Page 2 products, and their potential alternatives in order to determine how best to limit exposure or to reduce the level of hazard posed by a chemical of concern, as specified; and establish a process that includes an evaluation of the availability of potential alternatives and potential hazards posed by alternatives, as well as an evaluation of critical exposure pathways. 3) Requires DTSC to establish a Toxics Information Clearinghouse for the collection, maintenance, and distribution of specific chemical hazard traits and environmental and toxicological end-point data. The bill also requires the Office of Environmental Health Hazard Assessment to evaluate and specify the hazard traits and environmental and toxicological end-points and any other relevant data that are to be included in the clearinghouse. This bill : 1) Makes legislative findings regarding the federal Consumer Product Safety Act and the authority of states to impose stricter requirements if the state standard provides a higher degree of protection than the federal standard. 2) Defines various terms, including "designated consumer product." 3) Requires a manufacturer or wholesaler of a designated consumer product to provide notice of all substances that are contained in their product. 4) Provides that notice is fulfilled by the posting of required information on a manufacturer's or wholesaler's web site; manufacturers or wholesalers must establish a web site for compliance with this bill. COMMENTS : 1) Purpose of Bill . According to the author, there are currently more than 80,000 chemicals approved under federal law for use in the United States. Each day, a total of 42 billion pounds of chemical substances are produced or imported in the U.S. for commerical and industrial uses. SB 928 Page 3 An additional 1,000 new chemicals are introduced into commerce each year. Approximately one new chemical comes to market every 2.6 seconds and global chemical production is projected to double every 25 years. The average U.S. consumer today comes into contact with 100 chemicals per day. In 2009, the U.S. Centers for Disease Control conducted the Fourth National Report on Human Exposure to Environmental Chemicals which measured 212 chemicals in the blood and urine of a representative population of California. California consumers and businesses are becoming increasingly aware and concerned about the abundance of chemicals that they are exposed to in the products that they use on a day-to-day basis in their homes and in the workplace. However, they lack the ability to make informed decisions about the chemicals in the products that they purchase because product manufacturers are not required to disclose the chemicals in the products. Additionally the author notes that there is a vast gap in data concerning how Californians are being exposed to these chemicals, at what level and frequency they are being exposed and what the impacts are of the individual or synergistic, long or short term, low or high concentration exposures because there is a lack of chemical ingredient disclosure on consumer products. Given the magnitude of chemical production, use and exposure, it is crucial to construct a better understanding of these exposures. According to the author, SB 928 would empower California consumers and businesses to access basic information about the ingredients in their products and make informed decisions about the type of products that they purchase and use, and would help construct a clearer picture of where chemicals are used in consumer products and how that impacts exposures. 2) The Toxic Substances Control Act (TSCA) . The federal Toxic Substances Control Act of 1976 (TSCA) authorizes USEPA to require reporting, record-keeping and testing requirements, and set restrictions relating to chemical substances and/or mixtures. Certain substances are generally excluded from TSCA, including, among others, food, drugs, cosmetics and pesticides. TSCA addresses the production, importation, SB 928 Page 4 use, and disposal of specific chemicals. Among its provisions, TSCA requires USEPA to maintain the TSCA inventory which currently contains more than 83,000 chemicals. As new chemicals are commercially manufactured or imported, they are placed on the list. TSCA requires the submission of health and safety studies which are known or available to those who manufacture, process, or distribute in commerce specified chemicals; and allows USEPA to gather information from manufacturers and processors about production/import volumes, chemical uses and methods of disposal, and the extent to which people and the environment are exposed. Data Gaps in TSCA - Within TSCA there are several areas where there are vast gaps in data available about chemicals currently in use in the United States. For example: TSCA places the responsibility for conducting health and environmental impact testing on USEPA, not the producer of the chemical substance or mixture. To date, USEPA has conducted testing and published data on 200 chemicals on the inventory of 83,000 chemicals. TSCA does not provide for the review of synergistic health and environmental impacts of the potential interactions of the thousands of chemicals and the potential mulitude of exposures and exposure pathways. There were 62,000 chemicals in use in 1976 when TSCA was adopted into federal law. TSCA provides for a grandfather clause for those 62,000 chemicals. SB 928 Page 5 TSCA provides chemical producers protections for confidential business information (CBI), allowing producers to not publicly disclose information about new chemicals entering commerce. To date, the USEPA has reported that nearly two-thirds of the new chemicals reported under TSCA over the last 33 years have claimed CBI protection. Current Actions under TSCA - On September 29, 2009, USEPA Administrator Lisa Jackson announced enhancements to the agency's current chemicals management program under TSCA in an effort to identify chemicals that pose a concern to the public, move quickly to evaluate them and determine what actions need to be taken to address the risks they may pose, and initiate appropriate action. EPA will produce "chemical action plans," which will target the agency's regulatory efforts on chemicals of concern. On December 30, 2009, EPA posted action plans on phthalates, perfluorinated chemicals, polybrominated diphenyl ethers and short-chain chlorinated paraffins. These action plans summarize available hazard, exposure, and use information; outline some of the risks that each chemical may present; and identify specific steps that USEPA is taking to address those concerns. However, even with the enhanced efforts, in 2009 the Government Accountability Office found USEPA's implementation of TSCA to be "high-risk" because "EPA has failed to develop sufficient chemical assessment information on the toxicity of many chemicals that may be found in the environment as well as tens of thousands of chemicals used commercially in the United States" and concluded by stating that Congress may wish to amend TSCA and extend the EPA more explicit authority. At a recent Congressional hearing in SB 928 Page 6 February 2010, the GAO director again reiterated concerns, brought up new insufficiencies in USEPA's use of the authority and direction of TSCA, and called for legislative reform of TSCA. USEPA's own Inspector General additionally declared on February 17, 2010, a need to make internal reforms to more strictly enforce TSCA and set timelines for how long confidential business information can be kept secret rather than allowing for indefinite disclosure protections. 1) Extensive deficiencies in the federal regulation of chemicals . Of all federal environmental statutes, the Toxic Substances Control Act of 1976 (TSCA) is the only law that is intended to enable regulation of chemicals both before and after they enter commerce. Numerous academic, legal, and scientific bodies have all concluded that TSCA has not served as an effective vehicle for the public, industry, or government to assess the hazards of chemicals in commerce. After decades of implementation, TSCA has largely failed to provide the necessary information to assess the health and environmental effects for tens of thousands of chemicals in commerce. TSCA's weaknesses have far-reaching effects. Lacking comprehensive and standardized information on toxicity and eco-toxicity for most chemicals, it is very difficult for businesses and industry to choose safer chemicals or to identify and reduce the use of hazardous chemicals in their supply chains. Government agencies do not have the information they need to systematically identify and prioritize chemical hazards, nor the legal tools to efficiently mitigate known hazards. 2) Green Chemistry in California . For more than a decade, California has struggled to fill in the gaps in TSCA chemical policy. The Legislature has considered nearly a hundred bills proposing chemical bans and broader chemical policies for California, heard testimony from "battling scientists" and was interested in developing a broader, more comprehensive approach to chemicals policy. In 2003, the Senate Environmental Quality Committee and the SB 928 Page 7 Assembly committee on Environmental Safety and Toxic Materials commissioned a report from the University of California to investigate the current legal and regulatory structure for chemical substance and report on how a California chemicals policy could address environmental and health concerns about chemical toxicity, build a long-term capacity to improve the design and use of chemicals, and understand the implications of European policy on the California chemical market. In 2006, the U.C. Berkeley authors presented the commissioned report, Green Chemistry in California: A Framework for Leadership in Chemicals Policy and Innovation and made a connection between weaknesses in federal policy, namely TSCA, and the health and environmental damage happening in California. The report broadly summarized their findings into what they called the "three gaps". 1. Data Gap: There is a lack of information on which chemicals are safe, which are toxic, and what chemicals are in products. The lack of access to chemical data creates an unequal marketplace. California businesses cannot choose and make safer products and respond to consumer demand without ingredient disclosure and safety testing. 2. Safety Gap: Government agencies do not have the legal tools or information to prioritize chemical hazards. Under TSCA only 5 chemicals out of 83,000 have been banned since 1976. The California legislature has frequently addressed this problem by approving individual chemical bans. Chemical bans come before the legislature because there are very few other mechanisms in place at the federal or state level that can remove harmful chemicals from the marketplace. 3. Technology Gap: There is an absence of regulatory incentives, market motivation which stems from the data gap, and educational emphasis on green chemistry methodologies and technologies. In order to build a substantial green chemistry infrastructure, a coincident investment and commitment must be made to strengthen industrial and academic research and SB 928 Page 8 development. In 2007, the California Environmental Protection Agency launched California's Green Chemistry Initiative within the Department of Toxics and Substances Control (DTSC). The California Green Chemistry Initiative Final Report released in December 2008 included the following six policy recommendations for implementing this comprehensive program in order to foster a new era in the design of a new consumer products economy - inventing, manufacturing and using toxic-free, sustainable products. 1. Expand Pollution Prevention and product stewardship programs to more business sectors to focus on prevention rather than simple source reduction or waste controls. 2. Develop Green Chemistry Workforce Education and Training, Research and Development and Technology Transfer through new and existing educational program and public/private partnerships. 3. Create an Online Product Ingredient Network to disclose chemical ingredients for products sold in California, while protecting trade secrets. 4. Create an Online Toxics Clearinghouse, an online database providing data on chemical, toxicity and hazard traits to the market place and public. 5. Accelerate the Quest for Safer Products, creating a systematic, science-based process to evaluate chemicals of concern and identify safer alternatives to ensure product safety. 6. Move Toward a Cradle-to-Cradle Economy to leverage market forces to produce products that are "benign-by-design" in part by establishing a California Green Products Registry to develop green metrics and tools for a range of consumer products and encourage their use by businesses. In 2008, Assembly Bill 1879 (Feuer) and Senate Bill 509 (Simitian) were signed by the Governor to implement together SB 928 Page 9 two key pieces of a green chemistry initiative for California: 1) requiring DTSC to adopt regulations for the identification and prioritization and evaluation of chemicals or chemical ingredients in products that may be considered a "chemical of concern" and their potential alternatives; and 2) requiring DTSC and the Office of Environmental Health Hazard Assessment to establish a Toxics Information Clearinghouse for the collection, maintenance, and distribution of specific chemical hazard traits and environmental and toxicological end-point data and evaluate and specify the hazard traits and environmental and toxicological end-points and any other relevant data that are to be included in the clearinghouse. DTSC recently released a framework to illustrate the concept of the regulations that DTSC is currently working to develop. According to DTSC, the projected release date of the proposed regulations is late spring/early summer and the department projects completing and adopting the final regulations by the end of 2010. 1)Proponents' arguments . The supporters state that in the quest for sparkling clean, germ-free homes, today's consumers have a vast array of products at their disposal: detergents, disinfectants, glass cleaners, carpet cleaners, stain removers, air fresheners and all-purpose cleansers. Sales of cleaning products to U.S. consumers reached $7.3 billion dollars in 2007. But many consumers don't know - and the labels won't tell them - that chemicals found in some ordinary household products are known or suspected to cause cancer, birth defects, asthma, skin sensitivities, allergic reactions and other serious health effects. Supporters argue that current law does not require manufacturers to disclose the ingredients in cleaning products to consumers. While some companies are beginning to disclose cleaning product ingredients, many chemicals remain hidden, particularly those found in fragrances. Consumers who want to make educated purchases are often in the dark when it comes to how to purchase safe cleaning products. They add that similarly, institutions like hospitals and schools who serve vulnerable populations are often denied access to ingredient information from manufacturers. These SB 928 Page 10 institutions are then forced to buy products about which they know little or nothing regarding possible health hazards. Even physicians treating patients who have suffered adverse reactions from exposure to cleaning products cannot get access to ingredient lists. The supporters believe that SB 928 will give consumers the information they need to make educated decisions about their purchases. 2)Opponents' Arguments . Opponents have provided the following arguments: The full ingredient disclosure in SB 928 is unnecessary, not scientifically sound, likely to cause consumer confusion and is potentially harmful to product innovation. SB 928 would require redundant layers of compliance by requiring manufacturers, wholesalers and retailers to disclose ingredients in products they sell on their websites, which will add cost to products sold in California. California businesses cannot ultimately compel the manufacturers that they do business with to disclose ingredient information and as such would have to stop selling products in California for which information cannot be obtained. Many small businesses do not currently maintain a website because they lack the expertise to do so and the cost of paying someone to build and maintain a website is cost prohibitive. The opposition feels that requiring website disclosure is an impediment to small business. 1)Issues for further consideration . There are ongoing discussions with all stakeholders regarding provisions to address the following concerns: 1) how best to address confidential business information; 2) nomenclature: (constructing a uniform protocol for reporting chemical names and related information); 3) enforcement of violations, and 4) how best to address incidental ingredients. SB 928 Page 11 SOURCE : Senator Simitian SUPPORT : Breast Cancer Action Breast Cancer Fund Clean Water Action Environment California Environmental Working Group Sierra Club Women's Voices for the Earth OPPOSITION : California Chamber of Commerce California Manufacturers & Technology Association